Like many topics covered in this column, neurodiversity can be uncomfortable to talk about. Terminology is ever evolving, and preferred terminology varies greatly between individuals. Historical stigma for people who are neurodivergent makes the decision even to disclose this part of their identities a challenge. But that is part of what this column is about, having difficult conversations and understanding we are all individuals, defying easy generalizations based on our intersecting identities. We need to make the legal profession more accessible and inclusive for neurodivergent attorneys and better understand and interact with our neurodivergent colleagues, clients, and community.

Neurodiversity refers to "individual differences in brain functioning regarded as normal variations within the human population." In other words, everyone's brain functions differently. "Neurodivergent is a nonmedical term that describes people whose brains develop or work differently for some reason. This means the person has different strengths and struggles from people whose brains develop or work more typically."

There are many types of neurodivergence, including, but not          limited to autism, attention deficit hyperactivity disorder (ADHD), intellectual disabilities, and mental health conditions. Since neurodivergence is not a medical term, individuals with these conditions may or may not consider themselves to be neurodivergent or to have a disability. Haley Moss, an autistic attorney and advocate, cautions, "One neurodivergent lawyer's personal and professional experiences are not representative of the diversity and nuance of a neurodiverse legal community." The Linguistic Society of America also cautions against generalizations as "even statements that appear to convey 'positive' stereotypes ... but which oversimplify characteristics among those sharing the identity and overlook crucial differences, can evoke or reinforce existing stereotypes on the part of the reader."

As attorneys, you are certain to encounter clients, co-workers, and litigants who are neurodivergent. You may interview, hire, and manage people who are neurodivergent. Understanding neurodivergence is a key part of becoming a culturally competent, inclusive, and effective leader. And, of course, some of you yourselves are neurodivergent, whether it is something you have long known or more recently discovered and might benefit personally from greater understanding and support in your professional lives.

It is estimated that 15-20% of the world's population exhibits some form of neurodivergence. Even so, neurodiversity and disabilities more generally are often overlooked when it comes to diversity and inclusion initiatives in the workplace. This is troubling given what we know about the prevalence of neurodiversity in the legal profession. A 2016 publication of the American Bar Association (ABA) study on the state of mental health of U.S. attorneys revealed anxiety, depression, and ADHD occur at significantly higher rates for lawyers than the general population, with 12.5% reporting ADHD compared to 5-10% of adults worldwide.

While neurodivergent conditions like ADHD and autism can present challenges, there isn't just one way to "think like a lawyer;" on the contrary, there can be tremendous value in building teams with diverse skills and minds that work differently. Studies have shown that employees working for organizations with a culture of diversity and inclusion are happier, healthier, and_ more productive. It's also good for business: companies that offered the most inclusive working environment for disabled employees outperformed their peers, achieving an average of 28% higher revenue.

Mary Dale Walters, senior vice president of Allsup, an employment network that helps those on disability benefits get back to work, says employers who exhibit an openness and a willingness to accommodate and hire people with disabilities garner more trust from their employees, which in turn leads to "better performance, better engagement, and better productivity." Giving neurodivergent workers the accommodations they need to perform their jobs is usually not an expensive undertaking, and it often leads to policies that benefit all employees.

If we are going to talk about creating a more inclusive legal profession, we cannot gloss over the role law schools play. To obtain ABA accreditation, law schools must report data on law students' race and gender, among other demographic data that does not include disability. Moss noted, "The exclusion of disability from law school demographic reports and surveys highlights the stigma of being disabled or neurodivergent while in law school, and how little the legal profession views neurodiversity or disability as valid forms of diversity." A February 2022 memorandum from the ABA Standards Committee stated they "will continue working [...] to determine the best way to collect information on disability and LGBT individuals on the Annual Questionnaire," so change may be on the horizon. As noted, the ABA is already collecting other demographic data through voluntary self-reporting, and students can always decline to respond.

Conversations about neurodiversity and disability through educational programs and training on terminology and implicit bias are also important. This spring, a panel of law school alumni and faculty from the University of Nebraska College of Law shared their experiences with ADHD, autism, anxiety and depression, and post-traumatic stress disorder — diagnoses that came before, during, and after law school — with current students. Students appreciated that panelists brought light to a misunderstood and many times silent struggle and were encouraged to see less stigma surrounding disabled attorneys. One student noted it is important to hear these stories because misconceptions surrounding disabilities and accommodations in law school often stem from being uninformed.

However, we are doing neurodivergent students and all future lawyers a disservice if conversations on neurodiversity and disability are relegated to panel discussions or courses on employment discrimination. A recently released volume of the journal if Legal Education provides a series of powerful perspectives on the experiences of law students and faculty with disabilities. One author reflects on courses she took as a disabled law student and laments the way the law often talks of and frames disability. She suggests adding a case to an existing syllabus that includes a disabled party or embodies a significant development in disability law, but also notes "significant good can be done by naming the ways that disability, in concert with racism and other forms of oppression, shapes whatever syllabi are already being taught." Professors who don't feel equipped to draw conclusions about the interplay of disability and their subjects can still raise questions for students to consider. She provides examples for several doctrinal courses, noting, "Any         thoughtful engagement with disability is so much more than nothing, which, sadly, is what many of us experience."

It is also important that students have access to information on the accommodations they may be entitled to, and instructors might consider how they can make their courses and grading processes more inclusive given the various ways in which students learn and process information.

Affinity groups in a school or work setting allow neurodivergent individuals to connect with and support one another and are one way to signal to prospective students and employees that they are welcome. In 2019, a group of law students formed the National Disabled Law Student Association (NDLSA) in recognition of the barriers to success in the legal profession faced by disabled law students. NDLSA identifies 52 law school chapters with more than 650 law student members, though none currently in Nebraska.

For the majority of students who successfully complete law school, another hurdle awaits. A bar examination is the main gateway to the practice of law in most states, including Nebraska. While all bar examination applicants need to fill out extensive application paperwork, neurodivergent applicants encounter two potential barriers when applying for the examination, mental health questions on character and fitness questionnaires and obtaining accommodations for the exam.

The type and value of mental health questions asked on character and fitness questionnaires throughout the United States is a subject of ongoing discussion and debate. Examination of these questions focuses on their effectiveness in predicting future misconduct, the necessity of an overbroad delve by bar examiners into the private medical history of applicants, the deterrent effect these questions have on law students' willingness to seek mental health treatment, and the need for bar examiners to protect the public and the justice system from foreseeable harm by applicants to practice law.

Nebraska currently includes these questions in the character and fitness section of the bar examination application:

Within the past five years, have you exhibited any conduct or behavior that calls into question your ability to exercise such responsibilities as being candid and truthful, handling funds, meeting deadlines, or otherwise representing the interest of others?

Within the past five years, have you asserted any condition or impairment as a defense, in mitigation ,or as an explanation for your conduct in the course of any inquiry or investigation by an educational institution, government agency, professional organization, or licensing authority; in any administrative or judicial proceeding; or in connection with an employment matter or termination procedure?

 Within the past five years, have you ever been absent from any post-secondary education institution for more than 20 days, other than for regularly scheduled school vacations?

Within the past five years, have you ever been absent from a job for more than twenty consecutive work days, other than for regularly scheduled school vacations?

Each question asks for a brief explanation if an applicant answers in the affirmative .If an affirmative response is provided, the Nebraska Bar Commission (Commission) may require applicants to authorize medical providers to provide, "information, without limitation, relating to mental illness or the use of drugs and alcohol, including copies of records, concerning advice, care, or treatment provided to me, to representatives of the Nebraska State Bar Commission." It further states this information, "may be subject to re-disclosure by the recipient and may no longer be protected by the federal HIPAA Privacy Rule."

As Nebraska considers adopting the NextGen Bar, it is a good time to reconsider the future of mental health questions in the character and fitness section. Should mental health questions be asked at all? If so, are all of the questions asked necessary? Wouldn't the relevant information sought from the second question be answered by the first? Is absence alone, without neglect or lack of notice relevant to competence to ethically practice law? Is the breadth of information asked of applicants to release from their medical providers necessary or would a letter from a medical professional suffice without requiring disclosure of irrelevant details that would almost certainly accompany a medical file? Could a preamble to these questions be added discussing why the questions are necessary, what explicit information is needed, what records they will receive from medical providers, who will review the material submitted, and how the information will be used?" Can the number of applicants denied admission to the bar based on mental health disclosures be provided? If the number is low, this would encourage applicants to get needed treatment. If the number is high, it should signal an additional review of the process is necessary.

The second potential barrier for neurodivergent applicants applying for the bar examination is the process of seeking accommodations. The accommodations request form states, "Accommodations granted elsewhere do not necessarily entitle an applicant to accommodations on the bar examination, although the Nebraska State Bar Commission gives considerable weight to documentation relating to past accommodations received in similar testing situations or in response to an IEP or Section 504 plan."

Compiling materials for the bar examination is already a difficult endeavor, requiring background information and documentation, fingerprints, and completion of many other forms. In addition to those materials, individuals asking for accommodations must review an application packet containing over 40 pages of instructions and forms, which requires filling out more materials and collecting even more documentation, including certification or documentation of prior accommodations from elementary or middle school.

The general instructions for requesting test accommodations state, "The Nebraska State Bar Commission encourages persons with disabilities to apply for test accommodations." Some steps the Commission could take to help neurodivergent students navigate this process, and feel encouraged rather than discouraged, include:

Dividing accommodations materials into separate, smaller files. The 40-plus page accommodations packet includes forms that are not applicable to all applicants. It includes forms to verify learning disabilities, attention deficit/ hyperactivity disorder, psychological disability, visual disability, and physical disability. Creating shorter, separate packets for each type of disability would help applicants feel less overwhelmed, especially when only a small portion of the packet applies to them.

 Reconsidering whether each piece of documentation is necessary. For example, documentation from elementary or middle school can be difficult to access, especially for applicants who are older or often moved as children.

Using very deliberate language when speaking with students or other applicants to demonstrate the Commission truly encourages people with disabilities to apply for accommodations and values them as potential members of the Nebraska bar. This can be accomplished by focusing on applicants needing accommodations instead of potential bad actors. Consider framing conversations in a positive way, such as encouraging students to find a medical professional with expertise in their condition, providing examples of types of accommodations typically considered reasonable, and omitting references to students having higher failure rates when they use accommodations. Although using warning language or extreme examples may have the benefit of discouraging applicants acting in bad faith, it can also discourage accommodation requests from applicants who are neurodivergent or have other invisible disabilities. Many of these applicants have gone through their lives being treated with skepticism about their conditions and deprecating comments may contribute to further feelings of stigma and degradation.

Much like the process of gaining admission to the bar, existing hiring practices also tend to disadvantage neurodivergent people. The Employer Assistance and Resource Network on Disability Inclusion (EARN) offers a comprehensive guide, "Neurodiversity in the Workplace," to help combat this and create work environments that are supportive and welcoming to neurodivergent employees. Small modifications can significantly impact a neurodivergent candidate's ability to navigate the process successfully and often benefit everyone in the applicant pool. In addition to ensuring candidates are aware of how to request accommodations, a more inclusive hiring process might include:

Conducting structured interviews, which standardizes the process among candidates and has been shown to decrease unconscious bias in hiring.

Asking specific questions aimed at assessing a candidate's job-related competencies and alignment with the organization's mission and values.

Explaining in advance what will happen during the interview.

 Providing interview questions to all candidates in advance.

Limiting the number of interviewers in a room to one or two people and/or conducting an initial interview by phone.

Neurodivergent applicants can benefit from changes like these without having to worry about sharing information regarding a disability prematurely or unnecessarily. An increasing number of firms have also launched affinity groups focused on disability, neurodiversity, or mental health. "Firms that can demonstrate that they are supportive of their lawyers with disabilities, that inclusion of disabled lawyers is embedded in their firm culture, and that disabled lawyers recruitment and retention is a priority, will go a long way toward easing concerns about disclosure and ensuring the success of their initiatives."

Still, there is much work ahead. Attorney Shain M. Neumeier provides this powerful reminder: "Like membership in any marginalized group, my status as an autistic person automatically puts me at risk of employment discrimination. This is as much or more because of employers' implicit biases about what qualifies as normal (and therefore respectable and acceptable) than because of overt and conscious bigotry. As a result, even organizations whose very purpose is to protect and advance disability and other civil rights can be and too often are extremely ableist toward their disabled employees." If we are to increase neurodiversity in the legal profession, it is imperative that all employers commit to the training and work required to recognize and fight unconscious bias.

The Nebraska State Bar Association (NSBA) lists inclusion as a value and strives to demonstrate they "[v]alue all our members and promote the strengths that come from our differences, including our diverse backgrounds, circumstances, and geographic and practice settings."40 Some ways they seek to support neurodivergent students and attorneys are through the NSBA Diversity Section, NLAP, and continuing legal education (CLE) on neurodiversity.

The NSBA is also reviewing options for how best to create networks for neurodivergent attorneys. Haley Moss states, "One of the most effective strategies to mitigate neurodiversity and disability bias in law practice is through trusted mentor- ship and professional relationship building." She further recommends local and state bar associations create "supportive networks within the profession's diversity and inclusion and mental health initiatives."

In her Equity and the Law column, Executive Director of the Nebraska Legal Diversity Council Shawntal Mallory stated, "I am consistently serious about two main things — mindfulness and action. In constantly strategizing about inclusion issues, I have often been asked, "where can I begin in my journey to help make a difference?" So, what can members of the legal community do to make the practice of law more welcoming and inclusive for neurodiverse attorneys? Try to avoid making assumptions about neurodivergent people, seek opportunities to learn more about neurodiversity, be mindful of your language choices, join the NSBA Diversity Section, and advocate for positive changes in the legal profession.

Kala Mueller is the Director of Public Interest & Pro Bono Initiatives at the University of Nebraska College of Law. She received her B.S. in Criminal Justice from the University of Nebraska-Lincoln and her J.D. from the University of Wisconsin Law School. Stefanie Pearlman is the Associate Dean for Diversity, Equity and Inclusion and a Professor of Law Library at the University of Nebraska College of Law. She received a B.A. from Hofstra University, a J.D. from Washington University, and a M.A. in information resources and library science from the University of Arizona. This article was republished from The Nebraska Lawyer, the official publication of the Nebraska State Bar Association. Find more at nebar.com.